Regulatory and Compliance

Suppose your company has a system: All payments are run through the finance center in New York; all emails are encrypted by a certain process; all reports on a certain subject contain items 1 through 10.

As sure as I’m sitting here, someone on the sales side of your company will tell you that we must make an exception for his new client. For this client only, we should run the payments through Canada, use a different encryption service, or delete item 5 and add items 11 through 14 to the report.

Because you’re reasonable, you’ll explain that this isn’t possible: “We have a system that is hard-wired into the computers. We have 3000 different clients. We are able to offer clients only what the system permits. If we start making exceptions for particular clients, then costs will escalate and we’re sure to make mistakes. Please don’t ask us to tailor our systems to fit your client, because we just can’t.”

The sales guy will then sputter and turn red in the face: “But this client is different! This is the firm’s biggest client! And the best! And the one with the highest margin!” . . .

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* Sri Srinivasan was sworn in as a member of the D.C. Circuit by Justice Sandra Day O’Connor, who called him “fair, faultless and fabulous.” The man must have great shoes. [Washington Post]

* Things aren’t going very well for Steven Donziger in the Chevron / Ecuador case now, but then again, they never are. The Second Circuit denied his bid to oust the judge on the case. [Bloomberg]

* Dewey know how much this failed firm’s ex-landlord wants from 450 of its former partners? Somewhere in the ballpark of $1.6 million to $45.45 million, so it could be painful. [Am Law Daily]

* Kilpatrick Townsend & Stockton has already named a new chairman. Congrats to J. Henry Walker IV, a man whose name alone makes it sound like he should probably leading something. [Daily Report]

* Time is running out for prosecutors to bring charges against those connected to Bernie Madoff’s Ponzi scheme, but it looks like his niece, a Fordham Law grad, is in their sights. [DealBook / New York Times]

* The series finale of Breaking Bad airs on Sunday, and you must be very sad, so here are five compliance lessons to take away from the show. First and foremost, don’t ever hire a Pinkman. [Corporate Counsel]

* E.A. Sports and the Collegiate Licensing Company settled the suit filed against them by college athletes, leaving the NCAA to whine, moan, and “take this all the way to the Supreme Court.” [Birmingham News]

* George Zimmerman’s wife says her husband “went on a victory tour” without her, and has no idea where he is. Clue: maybe he was advising Cybill Shepherd for her role on Law & Order next week. [Miami Herald]

I went through my first 360-degree review — where those above, beside, and beneath you in the organization all anonymously evaluate your performance — two years ago. Never one to shy away from abject public self-humiliation, I shared the result of that review in this column. I revealed that my biggest “blind spot” two years ago was in the area of celebrating the accomplishments of folks on my team: I thought I was pretty good on that score; those who worked under my supervision begged to differ.

I told you that I would fix that problem, and I did. During this year’s 360-degree review, my score for celebrating our accomplishments was a solid 4.0 — 0.9 better than two years ago, and precisely how I’d graded myself this time around. It had actually been pretty easy to solve this problem: I distributed emails celebrating our victories more often and to wider audiences; I stopped by folks’ desks to congratulate them on wins; and I was otherwise more sensitive to letting the world know when my merry gang of litigators did nice work.

Now that I’ve solved one management problem, however, another one naturally reared its ugly head during this year’s 360-degree review . . . .

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Partner asks for a draft brief by Wednesday. It doesn’t arrive on time. Partner asks Associate about the brief: “I wrote it, but the dog ate it. I’ll get you a draft next week.”

On the next assignment, Partner asks for a draft brief by a deadline. The brief doesn’t arrive on time. Partner asks about the brief: “I left the finished draft in a briefcase in my car, and a thief broke into my car and stole the briefcase. I’ll get you a draft next week.”

On the next assignment, the computer crashed at the last minute. And on the assignment after that, a junior lawyer doing some research for the brief fell ill, so it wasn’t possible to get the brief written on time.

For Partner, the solution is easy: “This clown is irresponsible. There are other associates around here who actually do things on time. I’ll stop working with the clown, and my life will be much easier. And I’ll report on the clown’s annual review that he’s irresponsible.”

For Associate, the situation is baffling: “I do great work, and I turn things in late only when fate interferes. Why doesn’t Partner work with me anymore, and why did he unfairly say on my review that I’m irresponsible?”

Another example; the corporate analogy to law firm life; and my stunning conclusion all after this enticing ellipsis . . .

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I love it: Law firms send us brochures and offer us free CLE programs about all the things that smart corporations should do.

We should protect data privacy. We should have written policies that require pre-approval before our sales folks entertain clients at fancy events. We should train our employees about “intelligent business communications,” so that no one writes stupid e-mails. We should train everyone about conflicts of interest, avoiding discrimination or harassment in the workplace, and insider trading. We should establish systems to confirm that any person or entity that needs a license is in fact licensed.

And then what do law firms themselves do? The firms blithely ship personal information from office to office around the world — because the folks in the U.S. need information about the plaintiff suing for personal injuries in France. The firms have no rules at all restricting how lawyers entertain their clients. Lawyers at the firms write stupid e-mails. [Note to David Lat: Please do not add a link to the preceding sentence about stupid e-mails. You'll link to an article about some law firm in particular, and lawyers at that firm will write to me accusing me of having slung mud at their firm. I'm not slinging mud at any one particular law firm, by God -- I'm slinging mud at all of them!] What else do firms do? Corporate lawyers move from New York to California and never bother to take the California bar exam, because it’s such a pain in the neck, and no one will ever know, anyway.

Corporate Counsel recently investigated this issue, asking major law firms about their compliance programs. The conclusion? Law firms generally either don’t have compliance programs or choose not to discuss the issue (because, I’ll speculate, they don’t have compliance programs, and prefer not to admit this publicly). Isn’t it time for the shoemaker’s children to be shod?

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We had the good fortune to have Patrick Fitzgerald — the former U.S. Attorney for the Northern District of Illinois who recently joined Skadden — speak to my company’s global compliance conference last month.

Let me prove that I’ve learned a little about this blogging business over the years: Before the jump, I’ll give you my personal thought or two about introducing prominent speakers. I’ll hold the good stuff — what Fitzgerald, the famous guy, said — until after the jump. (Watch this, Lat! They’ll be drawn through the jump like vultures to carrion!)

How do you introduce a prominent speaker? You can do it the usual way: He went to school, got a job, and did some fancy stuff, zzzzzzzz.

Or you can find something offbeat about the person. I chose to introduce Fitzgerald by saying that I was afraid that our speaker had peaked too young. He had been named one of the sexiest men alive by People magazine in 2005; how do you ever surpass that? And, also in 2005, he had received an award from Washingtonian magazine for “best performance without a script.” For most people, it’s all downhill from there.

Fortunately, our speaker managed to surpass his early achievements. And then I trotted through what must be the usual litany in a Fitzgerald introduction: Led the prosecutions of former Illinois Governors George Ryan (sentenced to five years) and Rod Blagojevich (14 years) and a bunch of others.

That was my contribution to the hour. But, you might ask, what did the famous guy have to say?

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The “talent management” folks are so different from lawyers.

Lawyers (at big firms, anyway) ask junior lawyers to do things and, ten years later, look to see who survived.

Talent management people couldn’t be different. They assess individuals and groups to try to find ways to improve performance. “O brave new world that has such people in’t!”

But when the talent management folks turn their sights on me, I realize that I have a split personality.

I (and everyone on my compliance team) recently took the Thomas-Kilman Conflict Mode Instrument. This puppy repeatedly asks which of two ways you would choose to resolve a conflict. After you make 30 of those choices, a computer spits out the “conflict-handling mode” that you prefer. The five conflict-handling modes are “competing,” “collaborating,” “compromising,” “avoiding,” and “accommodating.”

This test revealed my underlying split personality before I even learned the results. As to virtually every one of the 30 choices I was asked to make, my answer depends on the circumstances. When representing a party in litigation, I’m often a “compromiser”: He demands 100; I offer 10. He drops to 90; I go to 20. He wants six months to trial; I offer 24. On most subjects, litigants have equal power, and no one wants to be blamed for bothering the judge, so we compromise. According to Thomas-Kilman, I’m a “compromiser.”

But that’s just one of my many personalities. Suppose I’m not representing a party in litigation, but rather “negotiating” with one of my own clients. Goodbye “compromiser,” and hello….

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Some of you went to law school knowing exactly what kind of lawyer you wanted to be when you grew up. You watched Law and Order or Boston Legal and decided that duking it out against an evil opponent in the courtroom (while engaging in inappropriate trysts on the side) is your thing. Or you may want to work on billion-dollar deals and attend fab closing dinners with high-level business executives. If so, you probably won’t find this article very useful.

Others of you went to law school because, well, the pre-med thing didn’t pan out and you figured there was nothing better to do. Or maybe you went because your parents really, really wanted you to, but arguing in court sounds intimidating and you really don’t care about negotiating fancy-pants deals. Or maybe the only thing you really care about at this point is landing a decent-paying job. And if it involves some upward mobility and you can also make use of your law school degree, well heck, that would be a plus. If any of this describes you, read on….

double red triangle arrows Continue reading “Moonlighting: Want To Go In-House? Compliance May Be The Key”

* As an in-house compliance officer, there’s only one guarantee: you’ll be paid, and you’ll be paid quite well — we’re talking like six-figure salaries here. Regulatory corporate compliance, on the other hand, isn’t such a surefire thing. [WSJ Law Blog (sub. req.)]

* When it comes to employment data, this law dean claims that using full-time, long-term positions where bar passage is required as a standard to measure success in the employment market is “grossly misleading.” Uhh, come on, seriously? [Am Law Daily]

* “Bar passes and jobs are inextricably tied,” but eight of New York’s 15 law schools had lower bar passage rates than last year for the July exam. Guess which school came in dead last place. [New York Law Journal]

* You know, it may actually be a good thing for a monk to apply to law school right now. It can’t get much worse; after all, the guy’s already taken a vow of poverty. [Law Admissions Lowdown / U.S. News & World Report]

* Dominique Strauss-Kahn officially settled the sexual assault civil lawsuit that was filed against him by Nafissatou Diallo. Given that she thanked “everybody all over the world,” it was probably a nice payout. [CNN]

* Steven Keeva, a pioneer in work/life balance publications for lawyers, RIP. [ABA Journal]

An old Arab proverb says that there are four types of men:

“He who knows not and knows not he knows not; he is a fool — shun him.

He who knows not and knows he knows not; he is simple — teach him.

He who knows and knows not he knows; he is asleep — wake him.

And he who knows and knows he knows; . . .

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